We have previously covered the basics of copyright law among other articles in this copyright series. But did you know that another set of rights exists in copyright works is the concept of moral rights?
Moral rights vs copyright
Copyright is an economic right, allowing or preventing access or exploitation of the relevant work for profit. On the other hand, moral rights are non-economic rights that protect individual authors' and creators' personal interests. Particularly, these rights protect their reputations. They apply only to copyright works rather than any form of design right for example.
Moral rights specifically apply to literary, dramatic, musical or artistic works and films. This includes books, professional reports and articles, an architect's drawings, photographs, illustrations, adverts etc.
It is important that businesses consider moral rights when using or acquiring copyright protected works. This is because the person entitled to exercise moral rights will often be different to the copyright owner. Additionally, moral rights cannot be assigned.
An assignment of copyright does not necessarily give a business 'free rein' to use the copyright material. Businesses must act with care to address and reduce the risk of infringement of authors' moral rights. We explore the different types of moral rights and options for addressing them in commercial transactions in more detail below.
What do moral rights protect?
Authors' moral rights
There are four types of authors' moral rights in the UK:
1. The right of paternity (i.e. the right to be identified as author or director)
An author/director's right to be identified as such applies to the whole or any substantial part of a copyright literary, dramatic, musical or artistic work and lasts for the life of the author plus 70 years.
The right of paternity generally arises where the relevant work has been exploited in some form:
- Literary and dramatic works – where the work (or an adaptation of it) is commercially published, publicly performed, publicly communicated, included in films and/or sound recordings which are made public;
- Musical works – where the work (or an adaptation of it) is commercially published or copies of sound recordings are issued to the public (including as part of film soundtracks), however there is no right to be identified as the author where the musical work is publicly performed or communicated;
- Artistic works – where the work is commercially published, publicly exhibited or visually communicated to the public; and
- Films – where the firm is shown or communicated publicly, or copies are issued to the public.
The right will not, however, be infringed unless the author/director has first asserted it either:
- on an assignment of copyright in the work, by including a statement that the author/director asserts their right to be identified (they need not be the copyright owner or a party to the assignment); or
- by a personally signed document in writing (although this will only bind those who have notice of the assertion).
Certain additional methods apply in respect of public exhibition of artistic works.
Among other exceptions, the right to be identified as author or director does not apply to computer programs, designs of typefaces or any computer-generated works.
2. The right of integrity (i.e. the right to object to derogatory treatment)
The author's right to integrity, which also lasts for the author's life plus 70 years, applies to the whole or any part of their original work. 'Derogatory treatment' essentially means an addition to, deletion from, alteration to, or adaptation of their work which would be considered 'derogatory' if it amounts to distortion or mutilation and/or impacts the reputation or honour of the author.
This doesn't mean e.g. the translation of a book or the simple transposition of a piece of music to a different key, but an alteration e.g. affecting the quality of a work, omitting important passages so as to remove important context, or creating an unfavourable association with the author may be considered derogatory treatment.
Infringement arises when, in relation to a literary, dramatic or musical work which has been subjected to 'derogatory treatment', it is published commercially or publicly performed, issued or communicated; and in relation to an artistic work, it is published commercially or publicly exhibited or communicated. Anyone possessing or dealing with the work or a copy of it in the course of business also infringes the author's right of integrity where they know or have reason to believe it is an infringing article.
Various exceptions exist, including that the right of integrity does not apply to computer programs.
3. The right not to suffer false attribution
The right not to have a work falsely attributed to someone as author/director applies to the whole or any part of a work, e.g. a quote from a person's book, report or article, to which additional words are added which were not originally used by the person, would be a false attribution.
This right also applies where an artistic work has been altered after the author has transferred possession, and a person commercially deals with it and presents it as the original author's unaltered work. Where a literary, dramatic or musical work is falsely said to be an adaptation of another's work, that would also be a false attribution.
Anyone who publicly issues, exhibits or performs the work or associated material containing the false attribution would be infringing the right. Indirect infringement is also possible where someone, in the course of business, owns or commercially deals with a copy of the work and where they know or have reason to believe the attribution is false.
Unlike the other moral rights, this right lasts only until 20 years after the death of the author of the work.
4. The right to privacy (in relation to particular films and photographs)
The right to privacy applies to the whole or any substantial part of a photograph or film commissioned by a person for private and domestic purposes. This means that person has the right not to have copies of the work publicly distributed, shown or communicated (which would be infringed by anyone doing or authorising those acts). The right lasts for the author's life plus 70 years.
Performers' moral rights
Since 1 February 2006, two further types of moral rights have been conferred on performers (in relation to performances taking place on or after that date):
- The right to be identified as a performer (in relation to the whole or a substantial part of a qualifying performance); and
- The right to object to derogatory treatment (in relation to the whole or any part a qualifying performance).
We mention these for completeness, however they are of less relevance to commercial transactions.
Employee-created works
We do not detail all exceptions to the application of the above moral rights (though some are noted above), however particularly important ones apply to employee-created works. Where an employee has created a copyright work in the course of their employment, so that their employer is the first owner of the copyright in the work (unless there is a contrary agreement), the employee's entitlement to moral rights is more limited.
Notably, they will not benefit from the right to be identified as author (or director) in relation to any act done by, or authorised by, the copyright owner.
They also will not have the right to object to derogatory treatment in respect of anything done by or authorised by the copyright owner (unless the employee is, at the time of the act, or has previously been in published copies of the work, identified as the author/director). In relation to the latter, even where the right does apply, a disclaimer can prevent infringement.
Remedies for infringement
A breach of moral rights can be pursued as a breach of statutory duty and does not require proof of damage. It may be possible to obtain general and special damages for lost opportunity (in the event of a breach of the right of paternity causing loss of publicity), damage to reputation and goodwill as well as loss of sales (in the event of derogatory treatment and/or false attribution). It may also be possible to obtain an injunction so as to prevent future breaches.
Reducing risk in commercial transcations
Moral rights should be addressed in any commercial transactions involving copyright works. They are personal rather than property rights and can be (and often are) waived by the author/creator/performer in question, however such rights are not capable of being transferred by assignment.
Any waiver, where appropriate, can relate to a specific work or to works generally, to existing or future works, can be conditional or unconditional, and may be expressed to be revocable. It must be in writing and signed by the person giving up their moral right(s) (and where there are multiple authors, it should be noted that a waiver by one joint author would not affect the rights of the other(s)).
Infringement of a moral right can also be avoided by obtaining consent to do the relevant act (whether in writing or not, and whether express or implied), although commissioning the work does not infer consent to do any acts within the scope of moral rights.
The person entitled to exercise their moral rights will often not be the same as the owner of the relevant copyright work, so care must be taken to seek a waiver or consent from the correct person or all the joint authors (where appropriate), and/or to ensure that what's done with the work (whether by the original copyright owner, assignee or any licensee) does not infringe the above moral rights.
The position on moral rights differs across jurisdictions. For example, in France, certain different moral rights exist (a right of disclosure and a right of withdrawal, in addition to the right of paternity and right of integrity), are perpetual and cannot be waived. Therefore, if international rights are the subject of a commercial transaction, local advice should always be sought on the position on the particular moral rights subsisting in those international rights.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
